Should failure to confirm judicial nominees result in automatic confirmation or automatic rejection? KS & TN debate the issue this week

The last several years have seen numerous challenges to merit selection systems in the state legislatures, with perhaps the most common feature being some sort of legislative confirmation (often but not always in lieu of ending merit selection commissions). Two legislatures, Florida and Tennessee, have outright approved such plans, although the Florida proposal was rejected at the ballot box in 2012 and the Tennessee bill must be approved a second time before going to the voters. Under the 2012 Florida bill, the Senate would have had 90 days to confirm nominees for the state’s supreme court or else the nomination was deemed confirmed. The Senate would have been allowed to call itself back into session for such a confirmation process.

Kansas’ bills to end the state’s merit selection system (HCR 5002 and SB 8 / SCR 1601) and the Tennessee bill approved in 2012 and requiring approval in 2013/2014 (HJR 8 / SJR 2) opt for automatic confirmation. Kansas would have Senate confirmation within 60 calendar days or within 20 days of a new session start. Tennessee provides for confirmation by both houses within 60 calendar days or within 60 calendar days of a new session start. Neither appears to contemplate the chamber(s) coming back into session for confirmations.